Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

Earlier this week, the EEOC issued a press release emphasizing that: 

1.  Private sector bias charges hit an all-time high in FY 2011.  A total of 99,947 charges of employment discrimination were filed in 2011.  Retaliation allegations totaled 37,334, Race discrimination charges tototaled 35,395, Disability discrimination charges totaled 25,742 and Age discrimination totaled 23,465.  In the first full year of the Genetic Information Nondiscrimination Act (GINA), 245 charges were filed. 

2.  A record amount of money was recovered in FY 2011.  The EEOC recovered $455,600,000 in monetary relief through the administrative program and litigation.  This is $51,000,000 more than FY 2010.  The EEOC filed more than 300 lawsuits , and litigation efforts resulted in $91,000,000 of relief.  ADA claims produced the largest increase in monetary relief of all the statutes, with $103,400,000.  This was a 35.9% increase from FYI 2010.

3.  The pending inventory of charges was reduced for the first time in 10 years.  In FYI 2011, the EEOC resolved 112,499 charges, leaving an inventory of 78,136 of pending charges. 

Practice pointer.  Employers must continue to educate their workforce as to the employment laws that apply, and the consequences of violating them.  There seems to be more publicity about EEOC activities, and I anticipate this year will continue to show a steady, if not greater, number of charges being filed with the EEOC.  Employers must take any charge seriously, and respond in an appropriate manner, which may include involving legal counsel.  For those who remember Hill Street Blues, as Sgt Esterhaus would say in every show, "Hey, let's be careful out there". 

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Cheryl Perich was a teacher at the Hosanna-Tabor Church school in Michigan.  She taught mostly secular subjects, but also taught one 45 minute religious class and attended chapel with her class.  She was "called" a teacher by the school, completed religious training and was a "commissioned minister" at the school.  She was diagnosed with narcolepsy, and threatened to file a lawsuit against the Church under the Americans With Disabilities Act.  She claimed that she was terminated in retaliation for threatening to file the lawsuit, while the school said she was terminated for insubordination and failure to follow internal dispute resolution procedures.  In a unanimous decision, the Supreme Court found a "ministerial exception" to employment discrimination laws, holding that the courts stay out of the way of the hiring and firing of clergy.  Chief Justice John Roberts wrote that "When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us...The church must be free to choose who will guide it on its way."  Justice Roberts further wrote that:  "The interest of society in the enforcement of employment discrimination statutes is undoubtedly important...But so, too, is the interest of religious groups in choosing who will preach their beliefs, teach their faith and carry out their mission."  The Court found that the ministerial exception is not a jurisdictional bar to a lawsuit, but an affirmative defense.  The Court also made it clear that there was not a rigid formula for deciding which religious employees would qualify for the ministerial exception.  Future cases will be need to be decided by the courts based on the specific facts of each situation. 

Practice pointer.  This lawsuit was brought on behalf of Ms. Perich by the EEOC.  The Obama administration argued in support of Ms. Perich.  In rejecting the EEOC's arguments, Justice Roberts also wrote that reinstating Ms. Perich "would have plainly violated the church's freedom", and "would operate as a penalty on the church for terminating an unwanted minister:"  Justice Thomas wrote a concurring opinion, as did Justice Alito, who was joined by Justice Kagan.  A copy of the entire 39 page opinion can be found at the NYTimes. 

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As we approach the end of the 2011 Fiscal Year, September 30, the EEOC is once again busy filing suits around the country.  This year, the focus appears to be on the ADA, with over 20 suits being filed over the last 2 months.  These suits include claims involving the following disabilities:  Cerebral Palsy (McDonald's), Alcoholism (Old Dominion Freight Lines), Deafness (McCormick & Schmick's), Asthma (Insource Performance Solutions, LLC and LeGrand North America, Inc.), Epilepsy (Buy-Rite Thrift Store), Blindness (Bank of America and ITT Tech), End Stage Renal Disease (G2 Secure Staff, LLC), Traumatic Brain Injury (Outback Steakhouse), Psoriatic Arthritis (The Scooter Store), Cancer (SITA Information Networking Computing USA and The Area IV Senior Citizens Planning Council, Inc.), Gastro-Intestinal condition (Ford Motor Company), Diabetes (Kohl's Department Stores), Multiple Sclerosis (National HealthCare Corporation), a Double Amputee (J.A. Thomas and Associates), Fibromyalgia (The Children's Hospital in Colorado)and Hearing Impaired (Jewish Community Center of Greater Washington).  As you can tell, these lawsuits have been filed against companies big and small, for profit and non-profit, across the country and in many different industries.  These lawsuits come on the heels of a $75,000 settlement reached between the EEOC and Starbucks as the result of a dwarf barista, who needed a stepladder or stool to reach the coffee machines, who was fired after 3 days on the job. For a complete listing of 2010 press releases by the EEOC, you can visit their website.

Yesterday, in Texas, the EEOC filed a lawsuit against Bass Pro Shops alleging that stores in Houston, Louisiana and Alabama illegally discriminated against Black and Hispanic workers and job applicants, and retaliated against employees who raised questions and destroyed records.  The investigation began 6 years ago, and in April, 2010, the EEOC issued a Cause Determination finding that Bass discriminated against its' employees and applicants.  After attempting to negotiate a resolution since then, which was not successful, the EEOC filed its' lawsuit. 

Practice pointer.  The EEOC continues to be very aggressive in pursuing lawsuits around the country alleging numerous causes of action over which they have jurisdiction.  Getting sued by the EEOC is expensive, time consuming and can lead to negative publicity.  When an employer receives notice of a charge, it is important that the company take the appropriate steps to protect itself, from conducting an investigation, taking the appropriate corrective actions if necessary, responding to the charge in the proper manner, and treating the process with the time and attention it needs.  Failure to do so can lead to a disaster.

E-Verify.  Recently, I gave a presentation to the Greater Birmingham Apartment Association.  The use of E-Verify must be consistent with the Memorandum of Understanding (MOU) signed by the employer, Department of Homeland Security and the Social Security Administration.  One of the requirements in the MOU is that E-Verify cannot be used until after the employee is hired.  One of the attendees indicated that they use a third party to do background checks, criminal checks and use E-Verify.  When a company uses such a third party, it is important that E-Verify be used after hire, and not a part of the pre-employment screening.  I would also recommend that the employer review the MOU that the third party has with DHS and SSA.  The employer should also review the contract, if any, between it and the third party, to confirm that they are operating in compliance with the E-Verify program and with Alabama's new Immigration Law, assuming the E-Verify portions are upheld as constitutional.  Finally, on a side note, there was an interesting article published in the Wall Street Journal yesterday reporting an interesting coalition of liberals, conservative, Tea Party members and Libertarians who are against Congress passing a bill requiring the mandatory use of E-Verify by all employers in the United States.

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Recently, the Alabama Court of Civil Appeals issued its opinion in the case of Cascaden v. Winn-Dixie Montgomery, LLC.  Cascaden began working for Winn-Dixie in 1999, and in 2001 he was injured in an automobile accident on his way home from a holiday party hosted by some of the store managers.  He suffered injuries to his lower back and neck, and underwent medical treatment and physical therapy.  He voluntarily left Winn-Dixie in 2002, and in 2007 was rehired as a meat cutter.  During the hiring process, Cascaden completed a written medical questionnaire, in which he answered "no" to several questions inquiring into whether he had experienced prior back injuries or had undergone medical treatment for prior back and neck injuries.  He testified in his deposition that he answered no because he needed the job and was afraid if he answered truthfully he would not be hired.  In 2009, he re-injured his back lifting a heavy box, and filed suit seeking Workers' Compensation benefits in 2010. 

Winn-Dixie argued that Cascaden was barred from receiving benefits due to his written misrepresentation of his pre-existing medical condition.  The Statute provides, in pertinent part, that "No compensation shall be allowed, if at the time of or in the course of entering into employment....the employee knowingly and falsely misrepresents in writing his or her physical or mental condition and the condition is aggravated or reinjured in an accident arising out of and in the course of his employment."  In order to receive the protection of this statutory defense, the document must contain the following language, in bold print:  "Misrepresentation as to preexisting physical or mental conditions may void your workers' compensation benefits". 

Cascaden argued that since Winn-Dixie know about his prior back injury that occurred during his employment with Winn-Dixie, they could not have relied upon the misrepresentation.

The Court concluded that reliance is not a factor in determining whether or not workers compensation benefits can be denied if there is a written misrepresentation as to an applicant's physical or mental condition, and that physical or mental condition is aggravated in a work related accident. 

Practice pointers.  If an employer is using a medical questionnaire, in order to take advantage of the misrepresentation defense, it must contain, in bold print, the language set forth in the statute:  "Misrepresentation as to preexisting physical or mental conditions may void your workers' compensation benefits".  Applicants are obligated to respond truthfully, or risk being denied workers' compensation benefits if they reinjure or aggravate a pre-existing condition.  It must be pointed out that this case does not address any of the potential problems the Americans With Disabilities Act may cause in dealing with workers' compensation issues, including the circumstances when medical questionnaires are allowed under the ADA. 

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Recently, the 11th Circuit reviewed the American with Disabilities Act in  the case of Cunningham v. Nature's Earth Pellets, LLC.  Special thanks to Kelli Robinson, an associate with Sirote for this summary.  Kimberly Cunningham appealed a summary judgment in favor of her former employer, Nature's Earth Pellets, and against her complaint of discrimination in violation of the Americans with Disabilities Act (ADA).  Cunningham argued that Nature's Earth pellets wrongfully terminated her and regarded her as disabled based on her addiction to prescription drugs.  After considering the evidence, the Eleventh Circuit of the United States Court of Appeals affirmed summary judgment in favor of the employer.

The ADA provides that no covered employer "shall discriminate against a qualified individual with a disability because of the disability of such individual" in any of the "terms, conditions, or privileges of employment."  To establish a prima facie case of employment discrimination under the ADA, a plaintiff must prove that she has a "physical or mental impairment that substantially limits one or more [of her] major life activities" or is "regarded as having such an impairment."  Cunningham failed to establish a prima facie case of discrimination based on either an actual or perceived disability.

Cunningham argued that her addiction to anti-depressant medications prevented her from resolving other mental disorders, caused her to suffer about ten panic attacks a month, and interfered with her ability to breathe, concentrate, interact with others, and care for herself; but, Cunningham failed to establish that any of these impairments were or were regarded as substantially limiting. Cunningham testified that she was able to breathe and get ready for work; she performed regularly the tasks of a shipping clerk, which required her to monitor the supply of company products and coordinate deliveries of those products; and, she exercised sufficient independence of thought and concentration to withdraw from a rehabilitation facility against the advice of her physicians.

Even if Cunningham had established a prima facie case of discrimination, she failed to prove that the legitimate reason proffered for her termination was pretextual.  Nature's Earth Pellets introduced evidence that Cunningham had been terminated because of her extensive absenteeism and the number of final warnings that she had been given under the company's progressive discipline system.  To establish pretext, Cunningham was required to provide that the "proffered reason was not the true reason for the employment decision ... either by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation was unworthy of credence."  Despite Cunningham's argument that Nature's Earth Pellets had not considered terminating her for past infractions of its leave policy, the court did not find that the employer's decision to fire Cunningham this time lacked credence.  The court agreed that, based on Cunningham's history of absenteeism, Nature's Earth Pellets legitimately terminated Cunningham and, therefore, the court affirmed the summary judgment in favor of the employer.

Practice Pointer.  The Cunningham decision shows the importance of documenting problem employees.  Because there was a clear record of excessive absenteeism and progressive discipline, the Court was able to decide that there was no pretext in the decision to terminate Cunningham.

 Social Media impacts job applicants.

The New York Times published an article entitled "Social Media History Becomes a New Job Hurdle" examining the use of social media searches as a background check.  Social Intelligence, a year old company, performs internet searches that go back 7 years to look for conduct that may disqualify an applicant for the job.  Several instances of what I call stupid conduct are cited, including a women on Craigs List looking for Oxycontin, a woman posting nude pictures on an image-sharing site, instances of people making racist remarks, anti-Semitic remarks, and evidence of violent activity.  Interestingly, less than a third of the information found comes from social networking platforms like Facebook, Twitter and MySpace.  Rather, much of the negative information comes from blogs, user groups and other sharing sites.  Photographs and videotapes seem to cause the most trouble.

Practice pointer.  It is important that you control, the best you can, what you put up on the internet.  It is also important to monitor what other people post about you, whether it be in pictures, videos, or comments. 

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During the past several weeks, the EEOC has issued numerous press releases concerning settlements reached around the country in lawsuits filed by the EEOC.  In Baltimore, the EEOC settled a disability discrimination lawsuit against Marlow 6 Theater for $20,000. The allegations in the suit were that the movie theater fired a concession manager once it discovered that she had HIV.  The theater also agreed to significant remedial relief, including training for all employees and managers on the ADA, posting notices at it's facilities "affirming its commitment to complying with the ADA", that they be enjoined from discriminating on the basis of disability and be monitored by the EEOC for compliance with the ADA for 5 years.

LAZ Parking LLC, a parking company doing business in 16 states, agreed to pay $46,000 to settle a religious discrimination lawsuit filed by the EEOC.  In Atlanta, the EEOC filed its lawsuit alleging that LAZ discriminated against a Muslim woman by terminating her because of her religious beliefs and her refusal to remove her head covering.  The consent decree also requires LAZ to provide equal opportunity training, reporting and posting of anti-discrimination notices.

In North Carolina, Tuscarora Yarns agreed to pay $230,000 to settle a lawsuit filed by the EEOC alleging sexual harassment and retaliation.  The lawsuit claimed that the former plant manager harassed Ms. Martinez by propositioning her for sex, making unwelcome sexual comments, inappropriately touching her and trapping her in an office where he sexually assaulted her.  She escaped from the office and called the police.  The former plant manager was arrested for sexual battery, but eventually pled guilty to a reduced charge of assault on a female.  Martinez, who worked at the plant for approximately 2 years, was suspended when she complained about the sexual harassment.  Tuscarora Yarns also agreed to redistribute its sexual harassment policy to employees, post its harassment policy in both English and Spanish, and provide annual training at the plant where the incident occurred to managers, supervisors and employees.  Ms. Martinez was also represented by the Southern Poverty Law Center, based in Alabama.

Tony's Lounge Inc. and Italia Bakehouse and Bistro, LLC, operating as Tony's Restaurant was sued by the EEOC alleging that the restaurant sexually harassed a teen-aged hostess and two young female cooks.  The vice president of Tony's Lounge abused the individuals by repeatedly making unwelcome sexual advances, touching the young women and making sexually explicit comments.  Tony's agreed to pay $75,000 to settle the suit, agreed to provide sexual harassment training to all managers and adopt a clear policy on preventing sexual harassment.  Tony's also agreed not to rehire the vice president, who left the company shortly before the suit settled.

In Kansas City, Cactus Grill agreed to pay $150,000 as the result of a lawsuit being filed by the EEOC alleging that an older assistant manager sexually harassed and then terminated a teenage female server.  Before this incident occurred, there had been at least one other complaint about this assistant manager.  Cactus Grill also agreed to update it's anti-discrimination policy, redistribute the policy to all employees, train its managers and assistant managers in all its restaurants and report to the EEOC all complaints it receives concerning sexual harassment for a period of 2 years. 

Practice pointer.  The EEOC continues to pursue claims on behalf of employees who have been discriminated against around the country.  The cost to employers includes the settlement amount, legal fees, loss of productive time to defend themselves and bad publicity as a result of the EEOC's press releases whenever it settles a case.  Reviewing policies on a regular basis, training at least annually and properly investigating complaints must be done by employers to reduce exposure for harassment and discrimination claims. 

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The Wall Street Journal reports today that more than 70,000 claims were filed with the EEOC for the first six months of the governmnet's fiscal year that ended on April 30, 2010.  This is a 60% increase from the same period last year.  The article looks at the increase from both the employer side and the employee side.  Due to layoffs, employees who are not able to find a new job quickly may be more likely to engage in the litigation process.  On the other hand, employers may be conducting layoffs improperly by replacing older workers with younger, lower paid workers.  Disability claims are also up 10% over the previous year, and more than 20% since 2007.  The increase is due, in part, to the amendments to the ADA that make it easier to qualify as being "disabled".  In light of the depressed economy, many employers are finding it more burdensome to accommodate their employees who are disabled due to the costs involved. 

Practice pointer.  As more charges are being filed with the EEOC, both by those employees who have been laid off, and by those employees who think that they may be laid off in an attempt to protect their jobs, employers must be more diligent than ever in training their workforce, documenting disciplinary problems, in making decisions about termination or reductions in force and in responding to the EEOC when a charge is filed. 

Another "Duh" moment

The American Bar Association Journal published one of those stories that make you wonder just how smart lawyers really are.  A California lawyer sued his law firm alleging that he was disciplined by having his pay cut, and ultimately fired after he refused to participate in the firm's weekend retreat titled a "New Warrior Training Adventure".  Among the activities, according to the lawsuit, was sitting naked in a circle with other man and discussing their feelings while passing around a wooden phallus.  The law firm contends that the retreat was not a job requirement, and the reduction in pay was part of his employment agreement.  The website for The Mankind Project, which runs the New Warrior Training Adventure, refers to the program as a "modern male initiation and self-examination" and that nudity "is NOT required" although "the VAST majority of men choose to participate". 

Practice pointers.

Of course, anyone can sue anyone for anything.  It does not mean that the suit will be successful.  Unfortunately, whenever a charge or suit is filed, it often results in a great deal of expense, both monetary (legal fees, expenses, manpower diverted to defending the suit instead of "real" work) and non-monetary (decrease in morale, distractions, bad publicity).

Additionally, this suit is a reminder that activities away from work may result in claims for harassment and/or discrimination.

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In February, 2009, I wrote that "I anticipate the courts, especially the District Courts, will be busy in 2009 and 2010.  They will be busy looking at the ADAAA, the new FMLA regulations and other new laws that may be passed by Congress. "  USA Today reports today that the number of ADA charges filed in 2009 hit an all time high: with almost 21,500 ADA related charges being filed with the EEOC.  The author, Marisol Bello, concludes that "the main reasons for the increase:  the recession and an amendment to the ADA that broadened the definition of what it means to be disabled."  Adverse employment actions claimed by people with disabilities include termination, passed over for promotion, not being transferred to a job that matches the persons abilities and not providing reasonable accommodations.  Chai Feldblum, the EEOC Commissioner, explains the EEOC's belief that the ADA provides broad coverage: "You might not think that you have a disability, but if you have a medical condition and you feel you are discriminated against based on that condition, then you are covered."  From an employer's point of view, the not so bad news is that of the 18,776 cases concluded by the EEOC last year, 60% were found to have no basis under its rules, and about half of the cases it did take resulted in an outcome favorable to the employee.

Practice pointer.  The ADA will continue to be a growing area of charges and lawsuits as the courts interpret the 2009 amendments to the ADA which was passed by Congress to increase those individual covered under the act.  Employers must be sure they are complying with the ADA when dealing with issues involving disabled workers, from hiring to termination, and every step in between. 

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Americans With Disabilities Act Turns 20

This week marks the 20^th anniversary of the passage of the Americans With Disabilities Act. According to the Washington Post, the EEOC released a report indicating that “workers with targeted disabilities – including deafness, blindness, missing extremities, mental retardation, and partial and complete paralysis – represent less than 1% of the federal work force.” Based, in part, upon this report, President Obama issued an executive order requiring federal agencies to increase their efforts to hire 100,000 disabled employees over the next five years. “The order directs the office of Personnel Management, in consultation with the Labor Department, the EEOC and the Office of Management and Budget, to design strategies within 60 days for recruiting and hiring disabled workers. Personnel Managers at government agencies must be trained in employing the disabled. Agencies will then be required to development plans for recruiting and keeping the workers.” Also, this week, the House of Representatives passed legislation making the Internet and television more accessible to the disabled. The Bill, which now goes to the Senate, would require the telecommunications industry to caption on-line television programs and that telecommunications equipment that is used over the Internet be compatible with hearing aids. 

Practice pointer.  There has been quite a lot of recent activity concerning the accessibility of web sites for visually and hearing impaired individuals.  As with many laws, technology moves faster then the law can.  Businesses with web sites should be prepared to address these issues in the near future.

Update on Nursing Mothers

The U.S. Department of Labor, Wage and Hour Division, issuedFact Sheet No. 73 providing general information on the breakdown requirement for nursing mothers in the Patient Protection and Affordable Health Care Act which became effective on March 23, 2010. The DOL states that “employers are required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother. The frequency of breaks needed to express milk as well as the duration of each break will likely vary.” The DOL further points out that a bathroom is not a permissible location even if private. The location provided must be functional as a space for expressing breast milk. The DOL believes that “a space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public.” The break time only applies to employees who are not exempt from the FLSA’s overtime pay requirements. Employers with fewer than 50 employees are not subject to the FLSA break time requirements if compliance with the provision would impose an undue hardship. An undue hardship “is determined by looking at the difficulty or expense of compliance for specific employers in comparison with the size, financial resources, nature, and structure of the employer’s business.” The DOL further finds that “employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated the same way that other employees are compensated for break time.”

Home Depot Male-on-Male Sexual Harassment Case Settles

I recently reported on the Home Depot case involving  store manager David Corbitt.  While on appeal before the 11^th Circuit in a rare en banc session, the case settled and the appeal was dismissed before the court could enter a ruling. In light of the fact that the 11^th Circuit decided to hear the case en banc, the December panel opinion was vacated.

Practice pointer.  In light of the 11th Circuit's granting of an en banc hearing, the issues raised in this case peaked the interest of the judges.  Since the case was settled before a decision was released, the 11th Circuit will need to find another case with similar issues in order to address the issues raised in this case. 

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The EEOC announced another large settlement involving a large Alabama company.  The EEOC issued a press release on July 1 announcing a $100,000 settlement with McGriff Industries, a Cullman company, to settle a racial harassment and retaliation lawsuit filed by the EEOC.  According to the EEOC, "certain employees and managers in the Cullman facility routinely  used racially derogatory comments, slurs, and insults directed at or about African-Americans. The racial  misconduct escalated to threats and intimidation, including a derogatory threat  to cut one of the black employees. White  and black employees were offended by the racial misconduct, but were rebuffed  and retaliated against -- one employee was terminated and another had  his work assignments changed -- when they complained."

Practice pointer.  Training.  Training.  Training.  Supervision.  Supervision.  Supervision.  I don't need to say any more. 

Health Care Reform amends FLSA to require breastfeeding breaks.  Nursing mothers are now allowed to take a reasonable break when they need to express breast milk, and employers are required to provide a private location, other than a bathroom.  This applies for up to one year after the child's birth.  Employers with less than 50 employees are exempt if "an undue hardship" would be imposed by causing the employer significant difficulty or expense. 

Practice pointer.  As the Obama administration continues to put it's mark on the workplace with new laws and regulations, this is just another one that is now in place and imposes new obligations on employers.

FMLA claim for depression rejected.  The 8th Circuit, in the case of Kobus v. The College of St. Scholastica, Inc. found that  an employer has no obligation to reasonably accommodate an employee under the ADA when the employee did not inform the employer that he needed an accommodation.  Kobus was a painter for the college, and due to personal and family issues, was diagnosed with depression and prescribed Paxil.  He told his supervisor that he was suffering from stress and anxiety, but did not mention the diagnosis of depression.  When he told his supervisor that he needed time off work to deal with his stress, the supervisor placed a FMLA from Kobus's mailbox.  Kobus responded that he did not need leave.  Shortly after, Kobus was written up for excessive absenteeism.  Kobus then asked for "mental health leave" and his supervisor again asked if he wanted FMLA leave, and Kobus advised him that he did not have a doctor to fill out the FMLA form.  Kobus submitted a letter of resignation and received 2 weeks severance.  Kobus never mentioned depression or his medications and did not mention his condition or FMLA leave during his exit interview.  Kobus then sued the College claiming he was forced to resign and he was denied his FMLA rights and was discriminated against under the ADA.  The trial court dismissed these claims on summary judgment, finding that Kobus did not pursue FMLA leave and  "in fact, expressly rejected it", and that the ADA claim was due to be dismissed since he never informed the College that he needed a reasonable accommodation due to a disability. 

Practice pointer.  This decision demonstrated the need to train supervisors on various laws that apply in the workplace, including FMLA and ADA.  The supervisor, even though no mention was made by Kobus for FMLA leave, offered to treat it as such, and Kobus refused.  The Court further found that the ADA was not violated since Kobus never informed the College that an accommodation was needed. 

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The EEOC continues to file suits and reach settlements around the country on a regular basis.  Most recently, the EEOC announced a settlement with a Starbucks store in Arkansas as the result of disability discrimination.  According to KATV, Chuck Hannay was not hired because he has multiple sclerosis.  The EEOC said that Hannay applied for one of six barista positions, but he was never contacted and individuals with less experience and ability were hired instead.  The Starbucks store agreed to pay $80,000, and was enjoined from discriminating on the basis of disability and retaliation.  According to EEOC Regional Attorney Faye Williams, "People with disabilities should have equal opportunities for employment....This case demonstrates the EEOC's commitment to combat discrimination that prevents individuals with disabilities from taking their rightful place in the work force.

In Houston, the EEOC announced that two Sonic Drive-In franchises, with common ownership and management will pay $55,000 to settle a sexual harassment lawsuit filed by the EEOC.  According to the EEOC, the primary owner of the franchises "promoted a young, unqualified family member to consecutively higher management positions within the restaurants and allowed him to use his position of power to sexually harass the teens starting in 2006".  The EEOC also contended that this manager permitted and encouraged other male employees and managers to join in the harassing conduct.  When a 17year old female rejected the sexual advance of the manager, he became abusive to her and threatened her with a knife.  In addition to the monetary settlement, the defendants were required to develop and implement new policies and procedures for addressing illegal discrimination in the workplace, and they must be approved by the EEOC prior to implementation.  Jim Sacher, the EEOC's regional attorney, was quoted as saying:  "This lawsuit was filed in order to protect some of our nation's most vulnerable and impressionable workers-teenagers who. often are newcomers to the workplace...."

Practice pointers.  The EEOC continues to be extremely active in pursuing lawsuits and settlements  around the country.  Press releases usually accompany the filing of lawsuits and the settlement of cases, resulting in negative publicity for the companies named.  It is important to implement proper policies and procedures, and train the entire workforce on a regular basis.  This includes family members. 

As mentioned in a previous post, the EEOC is concentrating on harassment of young workers.  As we are still in the summer employment season, now is the prime time for teenagers who have summer jobs to be harassed, discriminated against and otherwise mistreated.  Again, training and monitoring the workforce is a must.

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Many years ago, when I first read my firm's policy about perfume/scents, I laughed.  I quickly realized that it is an important policy to have.  For the city of Detroit, it is not a  laughing matter.  Recently, CBS reported a $100,000 settlement was obtained in favor of a woman employee who worked in 3 separate buildings for Detroit. The employee was "chemically sensitive" and had adverse reactions to a co-worker's perfume and a room deodorizer used in the buildings.  She suffered from migraines, nausea and coughing as a result of the of exposure.   According to CBS, city workers "are now being warned not to wear scented products, including colognes, aftershave, perfumes and deodorants, or even use candles and air fresheners".  Employees who are chemically sensitive and have physical conditions that are triggered by exposure to perfumes or other scents, may be disabled under the Americans With Disabilities Act, and may need to be reasonably accommodated.  This means that the employer should engage in the interactive process to determine if the disability can be reasonably accommodated. 

Practice pointer.  If an employee complains of a sensitivity to perfumes/scents, the complaint must be taken seriously.  The employee may in fact have a disability that would be protected by the ADA.  If so, the interactive process should take place to see if a reasonable accommodation can be made.  Remember that the mere fact that someone complaints that a co-employee "stinks" or "smells bad" is not enough to qualify as a disability under the ADA: the person must have physical ailments, such as migraines or difficulty breathing,  that are triggered or caused by the perfume/scent to raise the possibility that the ADA may apply. 

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This week, in Harrison v. Benchmark Electronics Huntsville, Inc., the 11th Circuit reversed the trial court's summary judgment in favor of Benchmark (BEHI), and remanded the case for a jury trial.  Harrison was employed by Aerotek, a company that places temporary workers at BEHI.  He worked as a "debug tech", dealing with electronic boards.  Harrison suffered from epilepsy (since the age of 2) and took barbiturates to control his condition.  BEHI had a practice of hiring temporary workers as permanent employees if a supervisor believed that they would meet BEHI's needs.  Harrison submitted an application and took a pre-offer drug test, that was positive for barbiturates.  Although the testimony was in dispute, the evidence most favorable to Harrison indicates that his supervisor, Anthony, found out about the positive drug test and confronted Harrison about it.  Harrison provided a valid prescription, and Anthony called the MRO and passed the phone to Harrison and listened in as he answered questions from the MRO, including the fact that he took barbiturates due to his epilepsy.  After this conversation was overheard by Anthony, Anthony told HR not to prepare an offer letter for Harrison.  Anthony also advised Aerotek not to return Harrison to BEHI, and Aerotek complied, telling Harrison he had a performance and attitude problem and had been accused of threatening Anthony.  Harrison was terminated by Aerotek.

Harrison filed a charge with EEOC, and the EEOC determined that he did not have a disability and thus did not investigate the improper medical inquiry claim.  A right to sue letter was issued to Harrison, and he filed his suit.  The court first examined whether Harrison, a "non-disabled individual", can state a private cause of action for a prohibited medical inquiry in violation of Section 12112(d).  The court found that such a cause of action exists.  The court further found that an employer may conduct follow-up questioning in response to a positive drug test, but these questions are limited by Section 12112(d)(2), which prohibits disability-related inquiries.  "A reasonable jury could infer that Anthony's presence in the room was an intentional attempt likely to elicit information about a disability in violation of the ADA's prohibition against pre-employment medical inquiries". 

Practice pointers.  Although this case was decided under the ADA prior to the 2008 amendments, the logic is still applicable.  Employers must limit their pre-offer inquiries, even with a positive drug test, to non-disability related questions.  Of course, this is very difficult to do.  Additionally, as I have often written, it is important to train supervisors as to what they can and cannot do in relation to the ADA (as well as other employment laws).  The timing of Harrison's termination is certainly suspect.

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It appears as if the EEOC is taking a more active role in filing lawsuits against employers in the name of the EEOC.  Over the last several weeks, the EEOC has filed at least  9 lawsuits in Alabama against various employers.  These lawsuits include alleged violations of the ADA against  two different employers when employees were terminated after the employers learned the employees were HIV positive, allegations that the Age Discrimination in Employment Act was violated when the employer failed to promote a 50 year old employee and hired a younger, less qualified individual, allegations that an employee was terminated because she was pregnant, and allegations that a racially hostile work environment existed because black employees were subjected to the use of the "N" word and the display of a noose in the workplace.  This trend appears to be occurring around the country, with notable cases being filed by the EEOC against Pace Airlines, which operated Hooters Air on behalf of an Asian flight attendant who was fired after complaining that only white workers were being promoted, and a case against a Chicago area automobile dealer alleging that female employees were called obscene epithets and female customers were call "dingbats".

Based on the timing of these lawsuits, it is difficult to determine if this will be a long term trend based on a change in EEOC philosophy, or if it was a last minute rush to file the suits before the end of the fiscal year, which ended September 30, 2009.  Is it possible the EEOC has quotas for the number of lawsuits it files?

The EEOC also recently announced a record $6.2 million settlement of a nationwide class action lawsuit against Sears over the firing of disabled workers.  According to Law.com, Sears fired numerous employees who took leave for work related injuries and that Sears "routinely declined to make accommodations to bring back employees who had taken workers' compensation leave or to offer them a brief extension of their leave to make it possible for them to return later". 

In other EEOC news, the Wall Street Journal today reports that there is a large increase in retaliation claims being filed by employees against employers.  For the fiscal year ending September 30, 2008, retaliation claims rose 23% to 32,690, more than a third of all claims filed with the EEOC.  Although many of the retaliation claims are filed together with underlying discrimination claims, as I often point out during speeches, an employer can be guilty of retaliation even if cleared of the underlying claim of discrimination. 

Practice Pointer.  As evidenced by the types of claims alleged in the lawsuits filed by the EEOC, it appears as if all types of discrimination may be occurring in the workplace.  It is a good time, as we get to the end of the calender year, for companies to review their policies and procedures, make sure that their work force, including supervisors, receives training on the companie's anti-discrimination policies, and that  HR continues to monitor the workplace to avoid claims of discrimination. 

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For only the second time, the Alabama Court of Civil Appeals addressed the merits of the Alabama Age Discrimination in Employment Act (AADEA) in the case of Lambert v. Mazer Discount Home Centers, Inc. In a 30 page opinion, the Court noted that Mr. Lambert had worked for Mazer for 29 years, and at the time of his termination, was vice president of marketing, responsible for purchasing building materials, deal buying and planning and purchasing times for the types of advertising for Mazer products and stores. Mike Mazer took over as president of Mazer in 2005, and spoke with Lambert on more than one occasion about him being away from the office working on a vacation home and a rental home he had in Florida. It also appeared that he was distracted from his work at Mazer due to the extensive renovations the rental home needed. In early 2006, Issues arose concerning Lambert ordering kitchen and bath products improperly. Lambert admitted that Mike Mazer expressed his displeasure over the kitchen and bath problems. Finally, Mike Mazer became increasingly dissatisfied with Lambert's handling of the advertising for Mazer. In May, 2006, when Lambert was 47, he was discharged, refused to accept a severance package, and his job duties were assigned to 3 existing employees, 2 older than him and one younger. Lambert sued Mazer under the AADEA.

In proving an AADEA claim, the plaintiff must first establish a prima facie case of discrimination. If the plaintiff is successful, the defendant must articulate a nondiscriminatory reason for the employees rejection. The plaintiff must then have an opportunity to prove by a preponderance of the evidence that the reason offered by the defendant was a pretext for discrimination.

In order to prove his prima facie case of discrimination, the court held that Lambert was not required to prove that he was replaced by a younger employee. Instead, the plaintiff must prove 1) that he was in a protected group and was adversely affected by an employment decision; 2) that he was qualified to assume another position at the time of discharge; and 3) evidence that supports a reasonable inference of age discrimination. Lambert met the first two elements, but failed to prove an inference of discrimination. Although Lambert offered age-related comments made by Mazer, these comments were not about  Lambert or his performance, and therefore failed to support his claim. Furthermore, the fact that one of the three employees who were assigned Lambert's job duties was younger did not amount to substantial evidence demonstrating age discrimination. Lambert's age discrimination claim therefore failed as a matter of law.

Practice pointer. The Alabama Court of Civil Appeals did an excellent job of following federal law applicable to the federal Age Discrimination in Employment Act, which governs the AADEA. As more AADEA claims are filed in state court, I anticipate that more decisions will be rendered by the Alabama Court of Civil Appeals and ultimately the Alabama Supreme Court.

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On September 23,  the EEOC  published it's proposed regulations for the ADA to conform to the ADA Amendments Act of 2008.   The 93 pages of proposed regulations start the 60 day period for public comments on the proposal, although it is not clear when the final regulations will be published.  It is unlikely that the final regulations will be issued in 2009.  The EEOC published a series of questions and answers last week, and the proposed regulations can also be found on the EEOC website.  The proposed regulations appear to be much more specific then the existing regulations, listing specific physical and mental impairments that will "consistently" qualify as disabilities under the ADA, addressing types of action that will constitute "regarded as" discrimination and looking at how to determine impairments when mitigating measures are used by the employee. 

Practice pointer.  It is important to keep in mind that these are only the proposed regulations to be adopted by the EEOC. After comments are received, the final regulations will be published, probably early next year.  I believe that no matter what the final regulations are, the number of people who are considered "disabled" will increase, and the cost of implementing the new regulations will exceed the $100 million per year the EEOC estimates.

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As I was watching the news this morning, there were numerous reports of H1N1 flu being reported at schools around the state.  Many experts expect that it will spread throughout the country, reaching pandemic proportions.  As the H1N1 flu continues to spread, it raises many issues for the workplace.  First, the question is how to prevent it's spread.  The CDC's website has a great deal of information addressing the prevention of the spread of the flu.  Wash your hands often, if you sneeze or cough, do it into a tissue and throw it away, sanitize surfaces (clorox wipes seem to work), and if you are sick, stay away from others for 24 hours after the fever breaks. 

Another issue is the impact of the ADA on the workforce in relation to the H1N1 flu.  At pandemicflu.gov, there is a FAQ section.  Questions can be asked of the workforce about the flu if done correctly.  The website sets forth the following:  "An inquiry would not be disability-related if it identified non-medical reasons for absence during a pandemic (e.g., mandatory school closures or curtailed public transportation) on an equal footing with medical reasons (e.g., chronic illnesses that weaken immunity)."  Before asking any of these questions, employers should review this website and/or consult with their attorney to ensure that the are in compliance with the ADA.

H1N1 flu may also have FMLA implications.   Assuming an employee qualifies for FMLA leave,  he/she may be entitled to FMLA leave if they are suffering from the flu.  The employee would need to be absent 3 or more days, and would have to be treated by a health care provider on at least 2 occasions or visit a health care provider 1 time, resulting in a regimen of continuing treatment under the supervision of the health care provider.

Practice Pointers  The experts are predicting that the Swine Flu will have a major impact across the country.  It is already being felt in Alabama in numerous schools and colleges, and is creeping into the workplace.  HR needs to prepare now, if it has not already done so, to cope with the problems that may be caused by the flu.  The problems may include extended absences, controlling the spread of the flu, and making sure that there is enough manpower to get the work done.  Don't be tempted to permit sick workers, or their children, to be at the workplace.  Finally, treat all employees the same.  If an employee does not have any leave time left, and does not qualify for FMLA leave, do you provide additional paid time off? Unpaid time off? Termination?  Whatever the decision is, it must be consistently applied to all of the workforce. 

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On May 1, I published an entry addressing social networking in the workplace.  Subsequent to that time,  I had the opportunity to give another presentation on social networking.  Some interesting questions were asked by attendees that raised additional issues that need to be considered by employers when their employees are using social networking sites for business purposes.  One company permits its workers to use social networking sites to communicate for business purposes after regular business hours.  This raises questions concerning the FLSA and overtime: if non-exempt employees are conducting company business from their personal computers/PDAs, after regular business hours, are they entitled to compensation, including overtime if they work more than 40 hours a week?  Are the employees "on call", thus entitling them to compensation?

Another issue is the ownership of the information exchanged between an employer and an employee on personal computers/PDAs: should someone leave their employment, can they use information on their personal computers/PDAs when they start working for someone else who is a competitor?  Is the information confidential if no steps are taken to make it confidential?

One question that was asked had ADA implications:  a supervisor learned from a social networking site that one of the employees was suffering from depression.  Did the supervisor have an obligation to report this to HR?  If so, did HR have an obligation to go through the interactive process with the employee to determine if the depression was impacting his ability to work?  If so, were there any reasonable accommodations that could be made?

Practice Pointer.  Technology is moving too fast for the courts to keep pace.  Answers to these questions, and many others, will take years to wind their way through the courts.  In the meantime, it is recommended that employers adopt appropriate policies and procedures concerning the use of social networking sites for company business, and confidentiality and ownership of information that may be on personal computers/PDAs. 

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The United States Supreme Court recently refused to hear the case of Kellogg v. Energy Safety Services, Inc. which dealt with the question of whether driving is a major life activity under the ADA.  Kellogg worked as a safety technician for Energy Safety Services, and was required to drive a company vehicle to numerous work sites.  Kellogg  was diagnosed with epilepsy, and although she was cleared to continue working, her doctor prohibited her from driving.  Her employer advised her in writing that she worked in a "safety-sensitive" position, and she could not return to work without a full release from her doctor.  Kellogg sued under the ADA, and the jury found in her favor, awarding nearly $150,000 in compensatory damages and back pay.  On appeal, the 10th Circuit reversed the trial court, finding that driving is not a major life activity under the ADA.  The Supreme Court denied certiorari on Energy Safety Services application.  The following circuits have held that driving is not a major life activity under the ADA:  2nd, 3rd, 4th, 7th, 10th and 11th.  The 11th Circuit covers Alabama. 

Practice Pointer.  Although all these cases were decided under the old ADA, it must be noted that driving was not listed as a major life activity in the EEOC regulations under the old ADA, and it is not listed in the revised list of major activities under the ADA Amendments Act of 2008.  I anticipate as new cases wind their way through the courts under the ADA Amendments Act of 2008, this issue will continue to be addressed. 

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Hugh Butler filed his lawsuit against his former employer, Greif, Inc. alleging a violation of the anti-retaliation provision of the Americans with Disabilities Act (ADA).  Butler's attorney filed the charge with the EEOC, which is a pre-requisite to pursuing a claim under the ADA.  However, Butler failed to verify the charge since he did not sign it under oath, and under penalty of perjury.  The trial court granted summary judgment in favor of Greif.  On appeal, the Eleventh Circuit Court of Appeals affirmed the summary judgment, finding that the attorney's signature did not constitute a verification.  The court found that an attorney can verify the charge so long as he swears to the truth of the facts stated in the charge and has personal knowledge of those facts.  The charge could have been verified at any time while the charge was pending, but Butler failed to do so.  It should be noted that Butler failed to cooperate with the EEOC in their investigation, and thus dis-entitled him to any equitable relief, referring to a case from the Third Circuit that held that the "verification requirement should be subject to waiver "when equity so requires", such as when, as in that case, the employer responded to the EEOC charge on the merits, declined to challenge the sufficiency of the charge before the EEOC, and later attempted to move to dismiss the suit for lack of verification."

Practice Pointers.  From an employees' perspective, it is imperative that the EEOC charge be verified.  Employees must also cooperate with the EEOC during the investigation to take advantage of any equitable arguments they may have.  Employers need to remember that failure to  verify the charge can be remedied so long as the charge process is ongoing. 

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Over the past several weeks, there have been a large number of Title III ADA public accommodation lawsuits filed around Alabama in federal court.  These lawsuits, filed by the same law firm, use the same plaintiffs, who are disabled and often in wheelchairs, to visit various places of public accommodation and allege that they are denied full, safe and equal access to the properties due to their lack of compliance with the ADA.  The plaintiffs are trained to spot violations of the ADA, including such things as improper signage for handicapped parking, the slope/grade of handicapped ramps, the size of entrance doors, the pressure needed to open doors, the width of bathroom doors and stalls, and various other violations.  The way these suits usually proceed is that a lawsuit is filed, and then a meeting is requested to inspect the premises by the plaintiff's attorney and his architectural expert.  If the owner of the property is willing to correct the deficiencies, and pay for the expert and attorney's fees, the case will be dismissed upon reaching agreement as to these issues.  If not, the lawsuit continues. 

Practice Pointer.  The expense for correcting violations of the ADA in places of public accommodation can range from several thousand dollars to over a million dollars.  When I am out and about, and go into places of public accommodations, such as gas stations, restaurants, shopping centers, etc., I notice violations of the ADA on a regular basis.  It is advisable for owners of properties, that qualify as a place of public accommodation,  do an ADA audit to make sure that they are in compliance with the ADA.  Spending a little time and money up front to ensure compliance with the ADA may save a great deal of time and expense if a lawsuit is filed.

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Over the last several weeks, both the Alabama Court of Civil Appeals and the 11th Circuit Court of Appeals have issued a number of cases that impact the employment arena.  In my opinion, the most important ones are the following:

1.  Duran v. Goff Group:  Silva was working in Alabama for Jarman Construction when he died as the result of an on the job accident in 2003.  He was survived by a wife and two minor children, both of whom resided in Mexico at the time of his death.  The workers' compensation carrier, Goff Group, filed for a declaratory judgment that death benefits were not payable to Silva's dependents because they were nonresident aliens.  The Court of Civil Appeals found that since the dependents were neither citizens nor resident aliens in the United States, they were not afforded Constitutional guaranties to equal protection and due process.  The Court further found that the rights of dependents are separate and distinct from the rights of the deceased employee rather than derivative of the employee's rights.  As such, the non-resident alien dependents were not entitled to death benefits under Alabama's workers' compensation statute. 

2.  Allmond v. Akal Security Inc.:  Allmond applied for a job with Akal Security Inc. which, among other things, provided security officers at federal courthouses under contract with the U.S. Marshals Service.  Allmond was employed as a security officer in Columbus, Georgia.  One of the prerequisites of holding this job was to pass a hearing test, without the use of a hearing aid since the security officers must "be able to clearly understand directions in time of crisis....must be able to hear communication at a level of sound that does not inform persons causing an incident of the [officers'] response plans...[and] must be able to discern the direction of a disturbance or detect an approaching threat".  The hearing aid ban ensures that the officers can perform their job duties in the event the hearing aid fails or becomes dislodged.  Allmond failed the hearing test, and filed his lawsuit under the ADA and Rehabilitation Act.  The 11th Circuit, upholding the trial court's granting of summary judgment against Allmond, found that the hearing aid ban was job related and was consistent with a business necessity.  "When considered in the light of the tremendous harm that could result if a security officer could not perform the essential hearing functions of his job at a given moment, we accept this justification as legitimate and wholly consistent with business necessity".

3.  Gregory v. First Title of America Inc.:  Gregory worked as marketing representative for First Title, a title insurance company.  After she left her employment, she sued for overtime pay under the FLSA, seeking $10,000 in unpaid overtime compensation.  Her allegations included the fact that she never consummated a sale, that she was employed only to promote the company's services and to stimulate sales.  At her deposition, she testified that she did in fact obtain orders for title insurance and was paid a commission on her successful sales.  The 11th Circuit found that she was exempt under the FLSA as an oustside sales employee:  she was customarily and regularly performing her duties away from her employer's place of business, free from direct supervision,  that her primary duty was to obtain orders for title insurance, and her income was directed related to the number of orders she brought in or obtained. 

Seminar Update.  Due to an overwhelming response, my firm, Sirote & Permutt will conduct a second seminar addressing actual and anticipated changes in employment law on March 11, 2009 at Vulcan Park in Birmingham.  If you are interested in attending please contact ewilbourne@sirote.com or call 205.930.5494 to RSVP.

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This is the third entry in a series addressing issues that may arise in 2009.  This entry  will focus on employment trends, both in Alabama and nationwide. 

In a recent report in the Birmingham News concerning union participation, figures from the  Bureau of Labor Statistics show that  the number of Alabama workers who are union members barely increased in from 180,000 in 2007 to 181,000 in 2008.   In 2007,  9.8%, of Alabama's workforce was represented by unions.  This number increased sligtly to 10.7% in 2009.  The percentage of union workers in Alabama was tops in the Southeast, ahead of Florida (7.9%), Mississippi (7.3%), Tennessee (6.6%) and Georgia (4.6%).  I anticipate that these numbers will increase in 2009 and 2010, and the increase may be significant if the Employee Free Choice Act becomes law.

The Bureau of Labor Statistics reported that in 2008 a total of 2,394,434 workers were laid off, with 226,117 being laid off in December.  With more companies announcing layoffs, such as GM and Wal-Mart this week, it appears as if 2009 will continue to be a bad year for workers losing their jobs.  Alabama workers are not immune:  so far this year, at least 10 large Alabama employers have notifed the state that they intend to terminate approximately 1,700 employees from ther jobs.  Most recently, Graphic Packaging International in Tuscaloosa, announced this week that it is planning on laying off 90 workers later in 2009.

Several weeks ago,  the New York TImes ran a story entitled "Layoffs Herald a Heday for Employee Lawsuits", concluding that many of the newly terminated employees will head to the EEOC or attorneys to pursue legal action. 

Practice Pointer.  As more employees are terminated from their jobs, I anticipate that there will be an increase in claims and lawsuits, especially since they will have difficulty finding new jobs in this tight job market.  Employers need to update their policies and procedures to comply with existing and new employment laws, train the managerial and supervisory staff as to the laws and the company's policies, and treat their employees as fairly as possible during these difficult times.

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As we move through 2009,  I anticipate a great deal of activity on the employment front, both in Congress and in the courts.  There are a number of proposed new employment laws that have high priority with the current administration.  These include:

     Employment Non-Discrimination Act (ENDA): This bill prohibits discrimination based on sexual orientation.  There is a possibility that this bill would also prohibit transgender and bisexual discrimination.

       Healthy Families Act: This bill would require employers to pay for 7 sick days a year.  There must be 15 or more employees working at the business to be covered. 

     Employee Free Choice Act (EFCA): I wrote about this in detail in my January 30 blog entry.  This bill would effectively replace the secret ballot in union elections and replace it with a card check process.

     Civil Rights Act of 2008: This bill has many components, the most important of which are:  a)  Remove the damage caps currently in existence under Title VII and the ADA; b)  add compensatory and punitive damages under the FLSA; c)  prohibit arbitration in employment related cases unless the employee agrees to arbitration after the dispute has arisen; and d)  allow employees to recover expenses even if they are not the prevailing party in a lawsuit in all respects.

     FOREWARN Act:  this act would amend the Warn Act to apply to employers with 50 or more employees, instead of 100, and would require 90 days notice of plant closings or mass layoffs instead of the current 60 days.   At the present time, the WARN act's provisions concerning mass layoffs apply to employers with 500 or more employees: FOREWARN would reduce this number to 100.

I anticipate the courts, especially the District Courts, will be busy in 2009 and 2010.  They will be busy looking at the ADAAA, the new FMLA regulations and other new laws that may be passed by Congress.  The Supreme Court, which has already decided two employment related cases so far this year, has agreed to hear oral argument in the case of Ricci v. DeStefano, which deals with a reverse discrimination claim and whether a municipality can decline to certify results of a civil service exam that would make disproportionately more white applicants eligible for promotion than minority applicants.  The white and Hispanic plaintiffs claim they would have been promoted if the city did not invalidate the test results because no black candidate scored high enough to be promoted.  The Supreme Court will decide the following question: 

Whether municipalities may decline to certify results of an exam that would make disproportionately more white applicants eligible for promotion than minority applicants, due to fears that certifying the results would lead to charges of racial discrimination.

Practice Pointer.    Employers need to stay on top of the new laws and changes in existing laws as we move through 2009.  To that end, my law firm, Sirote & Permutt is hosting a free seminar, addressing the anticipated changes in employment law. The seminar will be held on February 25, 2009 from 11:30 am to 1:00 pm at Vulcan Park in Birmingham.  If you are interested in attending, please click here to view the invitation and make your reservation.  Space is limited.

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As we enter 2009, a perfect storm is brewing for changes in the employment arena.  A worsening economy.  A new Democratic President. Both houses of Congress controlled by Democrats.  An active Supreme Court.  An FDR depression era type stimulus plan.  Part 1 of The Perfect Storm will focus on what has already happened in 2009.  Part 2, to follow later this week, will focus on what may happen for the remainder of the year.

The Americans With Disabilities Amendment Act of 2009 became effective on January 1, 2009.  The new regulations for the Family Medical Leave Act became effective several weeks ago.

President Obama has been active, signing 3 Executive Orders on Friday, January 30, 2009 addressing Labor and Employment issues.  The "Notification of Employee Rights Under Federal Labor Laws" requires federal government contractors to post, in "conspicuous places", a notice informing employees that they have the right to join, or not join, a union.   The "Economy in Government Contracting" Executive Order prohibits Federal Contractors from obtaining reimbursement for funds expended to "persuade employees-whether employees of the recipient of the Federal disbursements or of any other entity-to exercise or not to exercise, or concerning the manner of exercising, the right to organize and bargain collectively through representatives of the employees' own choosing."  The third Executive Order, "Nondisplacement of Qualified Workers Under Service Contracts", states that service contracts "shall include a clause that requires the contractor, and its subcontractors, under a contract that succeeds a contract for performance of the same or similar services at the same location, to offer those employees (other than managerial and supervisory employees)... a right of first refusal of employment under the contract in positions for which they are qualified."  And as previously posted on my blog, President Obama signed the Lilly Ledbetter Equal Pay Act into law.

The United States Supreme Court has been active also, issuing 2 opinions dealing with employment issues. As discussed last week in my blog, in the Crawford case, the court dealt with retaliation against a participant in an internal investigation.  In  Fitzgerald v. Barnstable School Committee, a peer on peer sexual harassment case, the Court found that claims can be brought under both Title IX and Section 1983. 

On the immigration front, the implementation of the new I-9 forms that were supposed to be effective as of today, February 2, 2009 has been delayed until April 3, 2009.  And as a reminder as to the consequences of employing undocumented workers, Beverly Linan, who owned and operated Rodriquez Construction Company in Alabaster, Alabama, was indicted last week in Federal Court in a 3 count indictment  " charging harboring of illegal aliens, knowingly employing illegal aliens and a forfeiture count to recover profits made from employing illegal aliens, according a news release."

Part 2 of The Perfect Storm, which will be published later this week, will address what we can expect on the legislative and judicial fronts for the remainder of the year.  

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The Lilly Ledbetter Fair Pay Act of 2009, the passage of which was one of President Obama's main priorities, appears  ready to be signed into law.  President Obama is scheduled to sign the Act tomorrow morning, January 29, 2009.  The Act, which will amend Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act, will re-start the applicable statue of limitations each time a pay check or other benefits are paid for claims involving discrimination on compensation.  The law overturns the 2007 Supreme Court decision in Ledbetter v. Goodyear, arising out of Alabama.  In my opinion, the most important language of the Act is as follows:

"For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice."

The act purports to apply retroactively as set forth by Congress:  "This Act, and the amendments made by this Act, take effect as if enacted on May 28, 2007 and apply to all claims of discrimination in compensation...that are pending on or after that date."

Lily Ledbetter, who campaigned for President Obama, is quoted in the Birmingham News as follows:   "I will be treated like a second-class citizen by that corporation for the rest of my life," she said, noting that her retirement benefits reflect her lower pay. "But I have the satisfaction of getting this law changed back so that other people can still file."

Practice Pointer.  Now is the time for employers to review their pay polices and pay structure to make sure that there is no discrimination in pay under Title VII, ADEA, ADA and the Rehabilitation Act.  Employers should consider reviewing their pay practices from May 28, 2007, the effective date of this new law, forward.

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Since the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) was signed into law on September 28, 2008 by President Bush, many plaintiff's attorneys have attempted to argue that the  changes should apply retroactively to cases already pending in court.  Since the ADAAA made significant and substantial changes to existing law as developed by the Supreme Court, plaintiff's have argued that the employee friendly changes should apply to their cases that covered conduct allegedly in violation of the ADA, that occurred prior to January 1, 2009, the effective date of the ADAAA.

The Fifth Circuit Court of Appeals, in EEOC v. Agro Distrib. LLC, (5th Cir., No. 07-60447, 1/15/09) held that the ADAAA should not be retroactively applied.  Two of my partners, Kyle Smith and David Mellon, tried an ADA case last week in the U.S. District Court for the Middle District of Alabama, in Montgomery, before Judge Fuller.  Plaintiff's counsel argued that the ADAAA should apply retroactively to conduct that occurred several years ago.  Judge Fuller ruled consistently with the Fifth Circuit, finding that the ADA, not the ADAAA, was the correct law to use in deciding this case.  The jury returned a defense verdict in that case.

I anticipate that as more courts rule on this issue, they will be consistent with the findings of the Fifth Circuit and Judge Fuller.

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The Seattle Business Journal recently reported that in a survey of companies in the United States and Great Britain, corporate counsel expected the number of lawsuits filed against their companies  to increase in 2009.  Fulbright and Jaworski's 5th annual Litigation Trends Survey shows that 34% of companies are anticipating increased litigation in 2009, as opposed to 22% who predicted increased litigation for 2008.  The report goes on to state that in-house counsel reported increases in wage and hour litigation and privacy claims. 

As we rapidly approach 2009,  the Americans With Disabilities Amendment Act of 2008, with an effective date of January 1, 2009, and the new FMLA Regulations, with an effective date of January 16, 2009, will, in my judgment, lead to an increase in litigation in these areas.  Now is the time for employers to educate their HR professionals, managers and supervisory staff so they can effectively deal with these changes.

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President Bush recently signed the Americans with Disabilities Amendment Act of 2008 (ADAAA), which will become effective on January 1, 2009. The ADAAA will have a major impact on new cases filed after this date. Congress's intent in passing the ADAAA is to increase the coverage to additional employees. I anticipate that the ADAAA will result in a spike in new lawsuits being filed.

Some of the major changes of the ADAAA are:

1.   Pending cases.   Cases pending as of December 31, 2008 will be covered under the existing ADA and various court decisions.

2.  Supreme Court Decisions.  The Supreme Court's narrow interpretation of "disability" has been rejected by Congress, with the ADAAA stating that "substantially limits" shall be interpreted consistent with the findings and purposes of the ADA.

3. Mitigating Measures.  The ADAAA, with the exception of "ordinary eyeglasses or contact lenses" specifically sets forth that the effects of mitigating measures should not be considered in determining whether or not an individual has an impairment that substantially limits major life activity.

4. Substantially Limits. Congress specifically rejected the Supreme Court's narrow definition of "substantially limits" in Toyota Motor Mfg. Kentucky, Inc. v. Williams and instructs the courts to interpret "substantially limits" consistently with the findings and purposes of the ADA.

5. Major Life Activity.  The ADAAA sets forth a non-exhaustive list of major life activities including but not limited to "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." The ADAAA also sets forth as a major life activity, major bodily functions, including but not limited to "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions."

6. New Regulations.  The ADAAA grants the EEOC, the Attorney General and Secretary of Transportation the authority to issue regulations interpreting the definition of disability under the ADA.

Practice Pointers

1. Now is the time to educate yourself, your HR Department and your supervisory employees as to the impact of the ADAAA.

2. Review and amend as necessary the job descriptions and essential functions of the jobs at your place of business.

3. For any employee who has requested an accommodation under the ADA, whether it was granted or not, reengage in the interactive process in light of the ADAAA, to ensure that those who are entitled to a reasonable accommodation receive it.

4. Consult with your employment attorney concerning how the ADAAA will impact your company.

Of course, I am available to help you should the need arise. I was invited to participate at a seminar for Sterling Education Service that took place on November 19, 2008 in Birmingham. My presentation addressed the ADAAA.  To view my written handout, click here:  ADAAA Handout

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